Chapter 5: Unhealthy Conditions

Bad or Unhealthy Conditions in Your Apartment

All tenants who live in Massachusetts have the right to a decent, safe, sanitary, and healthy place to live. There are four primary sources of law that give tenants this right:

1. The State Sanitary Code sets the minimum legal standards that all Massachusetts landlords must follow. It says, for example, that all rental housing must have heat, hot water, and electricity; all bathrooms and kitchen must have sinks with hot water, and all doors and windows must have locks. It covers lead paint issues as well as cockroach and rodent problems. It sets all sorts of specific guidelines for health, safety and structural concerns; and states the amount of time in which different types of repairs should be made.

   If you would like to know if conditions in your apartment violate the State Sanitary Code, you can look at the Housing Code Checklist, in the back of this manual. This will also help you evaluate how long it should take your landlord to make each repair.

2. Local Health Ordinances are laws that towns and cities can pass to add to the laws of the State Sanitary Code; and they are usually stricter and more detailed.
3. The “Warranty of Habitability” works just like a warranty on any other product that is bought or rented. If there is something wrong with the product, a “warranty” says that it is up to the company to fix it. They may even be responsible for paying the customer the difference in value between the product in good condition and the product in defective condition. If the company is not accountable, that is “bad business” and they can be sued!

   The “Warranty of Habitability” requires that if landlords rent out apartments, they guarantee that they are safe and habitable. A landlord violates this warranty if he has knowledge of a condition in the apartment that may endanger or impair your health or safety, and doesn’t fix it.

4. The Law of Quiet Enjoyment protects a tenant from a landlord who intentionally interferes with the “quiet enjoyment” of their living situation; for example, by intentionally failing to provide certain utilities or by transferring the payment of certain utilities over to the tenant without their knowledge or consent.

Many tenants live in horrible conditions that not only affect their own well being, but also may seriously damage the long-term health of their small children. They live this way because they either don’t know that they have the right to demand better conditions or because they are afraid that they will be evicted if they put pressure on their landlord to make repairs. You cannot be evicted for asking your landlord to make repairs in your apartment; that is illegal! (Refer to chapter 7, Eviction and Rent Increase).

Furthermore, a lease that includes a clause that makes you responsible for making the repairs in your apartment is illegal! Nor can your landlord make you
responsible for making repairs in other parts of the building without your willingness and without paying you for your work. Also, a landlord cannot claim that he is charging you low rent because of the bad conditions that exist in your apartment. Bad conditions are illegal at whatever rent you pay, and whether you have a lease or not!

This chapter will explain some of the things you can legally do to get your landlord to make necessary repairs, as well as about what to do if he refuses to make them. You will also find out how much notice your landlord must give you before he can enter your home.

Steps You Can Take to Get Your Landlord to Make Repairs

The following steps can be followed in any order. For example, it is perfectly legal to order an inspection before you have notified your landlord of the bad conditions in writing.

1. Notify Your Landlord Right Away

When you notice something in the house that needs to be repaired, notify your landlord right away about the problem so that he can fix it. If it is an emergency, like your heat stops working or a water pipe bursts, contact your landlord immediately.

Make sure that your landlord gives you a timeframe in which he plans to make the repair/s. This will vary depending on the urgency of the problem, but should not be longer than 30 days from the time you notify him of the problem. The Housing Code Checklist, which you can find in the back of this manual, can tell you about the timeframe in which your type of repair should be made.

When you contact your landlord, be sure to tell him to let you know when the repairperson will be coming to fix the problem, so that you can be there to let him/her in. This way, nobody can use the excuse that the repair wasn’t made on time because they couldn’t get into your apartment.

For responsible landlords, simple notification should be enough to get the problem fixed within a reasonable amount of time.

*** Keep Records Now, Avoid Problems Later *** Keep a log or journal of everything that happens during this process, and keep it in a very safe place. Include all conversation between you and your landlord, jot down when repairs are made, and other significant events. Be sure to include the dates of when things happen. Also, make copies of ALL documents that pass between you and your landlord, as well as all inspection reports, repair receipts, and letters that may have anything to do with the situation. If your landlord makes any promises, make sure to get them in writing; tell him to give you a letter that states the promise. If there should ever be a dispute or if you should have to go to court, having copies of documents and a dated journal of events will help your case enormously!

2. Second Notice Letter

If you have already notified your landlord about the repair that needs to be made, and he hasn’t responded to you or has refused to make the repair within a reasonable amount of time (or refuses to do it all together); your next step is to write a formal letter asking him again to make the repair. The purpose of this step is to avoid claims that your landlord was never aware of the problem.

This letter should include information about what needs to be repaired, and that you already notified him of the problem on whatever date you did, but that he has failed to respond to your original request to fix it. Write that you expect him to inform you as soon a possible about when he plans to make the repair, and include your phone number/s so that he can easily get in touch with you.

Keep a copy of the letter for your own records. If your landlord doesn’t respond to the letter, send an identical copy of it (with the original date) to your landlord by certified mail (from your local post office). Request a return receipt so that you can prove that he received the letter.

3. Get an Inspection

If you have given your landlord a chance to make the necessary repairs and he has either not responded or refused, getting your apartment inspected can be very helpful. You may choose to let your landlord know that you are having it done, but you are not required to.

Keep in mind, though, that you can choose at any time to have your apartment inspected simply to find out if it is in good condition or not.

The Inspectional Services Department (ISD) in Boston, or your local Board of Health in other areas of the state, will provide free inspections to all tenants who request them. An inspector can determine if there are violations of the State Sanitary Code or Local Health Ordinances in your apartment, in the building’s common spaces, or in the exterior of the building. If there are violations, an inspector has the power to order your landlord to make repairs within a certain period of time. In many cases, landlords will then make the repairs.

To request an inspection, call ISD at (617) 635-5300 if you live in Boston (or if you live elsewhere, call your local Board of Health), and schedule a definite appointment for the inspection. You should be able to have the inspection done within 5 days of your request. If there are serious problems, such as lack of heat or water, tell them when you call. By law, the inspector must come for such urgent cases within 24 hours of your request. If you want a complete inspection (this includes your entire apartment, the common spaces, and the building’s exterior), you must make that clear on the phone and when the inspector comes. Otherwise, the inspector is only required to check for serious code-violations and the conditions you specifically ask to be checked. All tenants have the right to a complete inspection. They are recommended over partial inspections, just in case there are other violations that hadn’t appeared to you yet (such as an inefficient heating system that won’t become apparent until winter hits.)

Someone must be present during an inspection. If you are not able to be there, arrange for someone else to be there, and provide a note telling the inspector that this person has your permission to take the inspector through the apartment.

Remember that the inspector is not a houseguest. So don’t clean the apartment so well that you get rid of the evidence of bad conditions. Save mouse-droppings and dead cockroaches so that the inspector will know that there are mice and cockroach problems in the apartment.

Don’t be afraid to talk to the inspector! Don’t assume the inspector will see all the violations that you know exist. Point out violations if s/he misses them, and make sure s/he writes them all down. For example, if there are mouse droppings, make sure that the inspector writes this down, even if s/he doesn’t see any mice.

At the end of the inspection, the inspector must give you a copy of his/her report. If s/he doesn’t, ask for a copy. If the inspection reveals any violations that are so serious that they may “endanger or materially impair” your safety or well-being, the inspector must send a signed copy of the report and a repair order to your landlord within 12 hours of the inspection. This report should include a notice to the landlord to make a “good-faith effort” to correct these violations within 24 hours of receiving the notice. If the violations are not so serious, your landlord should receive a signed copy of the report as well as a repair order within 7 days of the inspection. The order should state that he should begin to make the repairs within 5 days of receiving the report, and that they should be completed within 30 days of receiving the report (or sooner if the inspector orders so). You should also receive copies of all of these documents within 7 days of the inspection. Save all of the documents for your own records.

If your landlord fails to correct any problem within the time the inspector ordered, contact the inspector. Inspectional Services is required to re-inspect the place to see if the repairs were made. You also have other options to get your landlord to take the repairs seriously.

NOTE: While housing inspectors can be very helpful to tenants in getting repairs made, some have been known to bend the rules in favor of landlords. Before the inspector comes, make sure that the conditions you are responsible for in your apartment and in common spaces (cleanliness, garbage, etc.) are in good shape, otherwise you could also be cited for code-violations. If you have any problems getting an inspector to come out to you, or if you feel that the inspector left violations or information out of his/her report or isn’t doing what s/he is supposed to be doing to help you; call ISD, your local Board of Health, or a tenants’ advocacy organization to help you get the proper service.

For conditions that an inspection will not help…

There are other conditions that don’t violate the State Sanitary Code or Local Health Ordinances, but do violate the Warranty of Habitabilityor the Law of Quiet Enjoyment. An inspection by ISD cannot determine these sorts of violations. You will find out more about what options you have in that situation in the next section of this chapter. But, if your landlord has violated laws other than the State Sanitary Code, it is best to consult a tenants’ advocacy organization or a legal service center before taking action against him.

Options if Your Landlord Continues to Refuse to Make Repairs

If your landlord either fails to respond to you or continues to refuse to make the repairs after he has received a letter from you and/or an order from an inspector, you may need to consider your options. If you have come to this stage, it is best to consult a tenants’ advocacy organization or a legal service center before you pursue any of the following options. This is to make sure that you are legally justified in your actions, and won’t be actually hurting yourself by taking the action. Also, be prepared for how your landlord may react, even though you may be completely justified. While he will most likely not be successful, your landlord may try to evict you in retaliation for the actions you’ve taken. For this reason, you must keep good records of every thing that happens in this process (all documents, reports, letters) and even take pictures of the bad conditions to support your case.

1. Withhold Rent

Tenants have the right to withhold rent because landlords have the obligation to provide habitable housing under the Warranty of Habitability. If a landlord breaks this obligation, a tenant’s obligation to pay the full amount of rent stops until repairs are made and the landlord resumes upholding his obligations. A tenant may withhold all or part of the rent depending on the seriousness of the violation/s. The law doesn’t state how much or how long you can withhold. Once the repairs are made and the apartment is up to code, you can resume paying full rent. In some cases, you will not have to reimburse your landlord for all or some of the past rent you withheld. This may depend on whether you end up going to court; the judge may award you the all or some of the money you withheld, to compensate you for the conditions your landlord expected you to live in.

If you chose to withhold rent, you must be sure to do it in a very particular way. If you don’t do it properly, you risk being evicted for non-payment of rent. Read the following section carefully.

In order to withhold rent legally, you must make sure that your situation qualifies with all of the following:

• The defective conditions in your apartment must be severe enough to “endanger or materially impair” the health or safety and well being of you or anyone else living in the home. An inspector or tenants’ advocate can help you determine this.
• Your landlord knows about the condition, and it helps if you have proof of this (like a copy of the letter you sent him and/or the inspection report).
• The conditions were not caused by you or someone under your control, like your child or a houseguest.

Withholding rent, if done correctly, is the most direct and effective way to force your landlord to make repairs. It is particularly effective in a building where a group of tenants organize and together withhold their rent. While you are withholding rent, your landlord is likely to try to negotiate with you. In your negotiations you should cover the following:

• The dates when your landlord will start and complete the repairs.
• How much rent you will pay (or withhold) while repairs are in process.
• How much of the withheld money you will return, if any, once repairs are properly completed.

If you do not feel satisfied with the outcome of the negotiations, you have the choice to continue to withhold rent and take further action.

The best way to protect yourself while you are withholding rent is to put that rent money into a bank account separate from the rest of your money. If you end up going to court, having your rent money in an account will show the judge that you weren’t withholding rent simply because you couldn’t afford to pay it. Also, the judge may determine the “fair rental value” of the apartment (taking into consideration all the code-violations) and may order you to pay back some of the money for the month/s that you withheld rent. You will be glad that you saved the money and have it available.

Once the entire situation is over, the repairs have been made and you resume paying regular rent payments, you can take the money out of the separate account, but keep the bank statements on that account as proof that you did the right thing.

2. Repair and Deduct

Under certain conditions, tenants have the right to pay for the repairs to be done and to then deduct the price from their rent payment. This way the repair actually gets done, but you take on the responsibility to make sure that it is done well. You can deduct a maximum of 4 month’s rent in a 12-month period. If you decide to repair and deduct, save all bills and receipts for materials and labor as proof of your costs.

To legally deduct the cost of repairs from your rent, all of the following conditions must be met:

• A housing inspector or a judge has certified that the violations “endanger or materially impair” the health, safety, or well being of a tenant.
• Your landlord was given written notice of the defective conditions. It helps if you have proof of this, like a copy of the letter you sent him and/or the inspection report (which was automatically sent to him).
• Your landlord failed to substantially proceed with the repairs within 14 days of your written notice (or within a shorter time, ordered by the inspector or judge).
• You have given your landlord reasonable access to the apartment to make the repairs.
• The conditions were not caused by you or someone under your control, like your child or a guest.

3. Break Your Lease

If there are serious violations of the State Sanitary Code in your home, your landlord refuses to make the repairs, and you feel you must move, the law allows you to break your lease and move out. Or in the case of a tenant at will, the law allows you to move out without giving the usual 30 days notice. This is because the landlord has violated his obligation to provide a habitable apartment under the Warranty of Habitability.

If you move out early, your landlord may try to sue you for breaking the lease. For this reason, before you move out it is wise to have an inspector’s report as proof of the violations in your apartment. But if the conditions are not serious code-violations, you may be responsible for paying the rent. When you move out because of serious violations, you are entitled to get your security deposit and last month’s rent back, but you might have to go to court to do so. (See chapter 4, Security Deposit and Last Month’s Rent) In court, again, you will need proof of the violations.

4. Take Your Landlord to Court

If your landlord still refuses to make the repairs after he has been notified in writing of the conditions, you can take him to court and ask the judge to require him to make the repairs. The court has the power to order your landlord to make the repairs, and/or to pay you money for the harm or inconvenience you have suffered. They can appoint a temporary landlord (called a “receiver”) to manage and fix up the property, and can even fine or arrest your landlord for violating the law. If there are other tenants in your building with similar conditions in their apartment that the landlord has refused to repair, it is always best to work together as a group to take your landlord to court.

There are four primary types of complaints that you can file with the court to demand that your landlord make repairs:

i. Tenant’s Petition

By filing a Tenant’s Petition, you are asking the judge to order your landlord to repair conditions that violate the State Sanitary Code or Local Health Ordinances. By filing a petition, you put yourself in a better position to negotiate what you want with your landlord. This is because the negotiations are overseen by a judge, and because you are taking your landlord to court (as opposed to your landlord taking you to court to try to evict you for withholding rent). The judge may also decide to appoint a “receiver” to make the repairs, and/or lower your rent to the “fair rental value” of the apartment until the repairs are made.

ii. Emergency Injunction

If you want a judge to order your landlord to make emergency repairs, you can ask the court to issue an “injunction.” This is a court order that requires your landlord to take immediate action to correct a problem or to stop doing something that is illegal. In many cases, tenants will request a Temporary Restraining Order (TRO) which can be used to get emergency repairs made, to restore your utilities (if they were illegally shut off), or to let you back into your apartment (if you were illegally kicked out). A TRO is only good for a maximum of ten days, but can be renewed. As soon as you are given a TRO, you must bring it to a sheriff or constable’s office, and they will serve it to your landlord. If your landlord refuses to obey the TRO, go back to court and tell the judge. Your landlord may then be fined and/or arrested.

iii. Civil Lawsuit or Small Claims Lawsuit

If your landlord fails to fix conditions in your home that violate any of the laws that protect tenants, you can file a civil lawsuit or take him to small claims court. (A small claims case is a civil lawsuit that involves less than $2,000.)

In a civil lawsuit, you can sue your landlord for the harm you have suffered or are suffering because of violations, including the following:

a) Breach (violation) of Warranty of Habitability
b) Breach (violation) of Law of Quiet Enjoyment
c) Unfair and Deceptive Practices
d) Infliction of Emotional Distress
e) Nuisance
f) Or violation of other laws…

During your civil suit, you can also ask the judge to issue an “emergency injunction” to actually get the repairs made. Or you can file a “tenant’s petition” while you are fighting a civil case.

iv. Criminal Complaint

If your landlord breaks the law by refusing to make necessary repairs, you can bring criminal charges against him, or you can ask the Inspectional Services Department (or your local Board of Health) to bring criminal charges against him. But, it can be quite hard to get ISD to actually pursue the case. This strategy does not produce quick results, so it is advised to do it at the same time that you are pursuing other strategies (like a “tenant’s petition” or an “emergency injunction”). However, the results can be severe, you may ask that your landlord pay a fine or even spend time in jail.

The benefits of a Criminal Case are: 1) being such a severe case, it may put just enough pressure on your landlord to make the repairs and continue to follow the laws in the future; and 2) if the ISD or Board of Health brings the criminal charges, you are relieved of some responsibility, because the inspector can present all the necessary evidence (although you might still have to appear to give testimony). But a disadvantage to having the Board of Health fight the case, is that you or your lawyer lose control of the day-to-day direction of the suit.

Get Assistance or Advice Before You Go to Court! If you — alone, or along with other tenants in your building — want to file criminal or civil charges against your negligent landlord, it is very important that you work with either a tenants’ advocacy organization or a legal service center to evaluate the strength of your case. They may be able to set you up with a lawyer (who specializes in housing law, and will only get paid if you win the case), and can advise you on how to construct your case. These groups can also help you file a “tenant’s petition” or an “emergency injunction.”

5. Organize With Other Tenants

All of the strategies to get your landlord to make repairs are strengthened when you are acting as a part of a team. When tenants who live in the same building or neighborhood organize to support each other against a negligent landlord or landlords, better results are seen quicker. Organizing also relieves pressure from individual tenants because the responsibilities are shared. There is power in numbers. Not only is your landlord likely to take you more seriously when you are accompanied by others fighting alongside you, but you will get a much more prompt and serious response from inspectors and judges. If you think your neighbors are also suffering from negligent landlords and you need help organizing them to fight with you, call City Life or another tenants’ advocacy organization.

Can my landlord come into my apartment whenever he wants to?

Some landlords think they can let themselves into your apartment whenever they want to, because they own the building. This is not true!Your landlord must have your permission to enter your home.Legally, he may only enter your apartment to make necessary repairs, to show an inspector into the apartment, or to show it to prospective buyers or tenants; BUT he is required to give you at least 24 hours notice before entering. If he doesn’t, you do not have to let him in. If there is something written in your lease that gives other reasons for why your landlord can enter your home or allows him to give you less than 24 hours notice before entering, then that part of your lease is illegal! Also, the law does not require you to give your landlord a key to your apartment, but your lease may.